Q:
Isn't protection by patents necessary in order to protect one's
investment against copying? There is no progress without such a
protection!

A:
Copyright is the perfect protection of investment for software.

Copyright has served well during the last twenty years as the
motor of the software industry. With software it works even
better than with books. One of the reasons is that in software a
strict separation between editable source code and executable
binary code is possible.

Software patents, on the other hand, are only used strategically in
the current practice—i.e. in the USA. As investment protection
they are much too inflexible, since they require waiting times
ranging from at minimum six months to some years and cost several
ten thousand Euros. Copyright becomes effective automatically and
immediately.

Maybe there are a few companies which could profit from software
patents, but nobody can seriously argue that software patents are
useful for the whole industry.

Q:
If a developer has spent much time in an epoch-making algorithm,
wouldn't it be adequate to reward him with a patent?

A:
The developer can—with the copyright as investment
protection—transform his discovery into software. This has
been working very well in the past.

A potential imitator, who only knows the original as executable
binary code, but not the source code, must spend the same amount of
work as the original developer. On which economical or moral reason
should he be prohibited from doing so?

The small inventor who obtains wealth from a patent and hard work
is, by the way, nothing more than a nice fairy tale. In hard
reality the biggest companies of the world are using patents by
the hundreds as weapons against each other or against smaller and
more flexible competitors.

Q:
Then I take out a patent for a basic technique and become rich!

A:
This only works if you do not develop software yourself, but concentrate
completely on patents. There are several companies living on a business
model like this.

But as soon as you develop software yourself, you cannot avoid infringing
on patents of large companies and will not be able to effectively prosecute
them because of infringement on your own patents.

Current situation

Q:
All the time I read “European software patents”.
I thought they do not exist currently, but should only be allowed
in future?

A:
That's not true. About 30,000 European software patents have been
granted against the law. The current jurisprudence (“status
quo”) differs very much from the current state of law (art.
52 EPC).

Q:
The European patent offices and the courts are not stupid and
will be able to prevent trivial patents and defend the
respectable entepreneur against absurd claims.

A:
The European patent offices already have granted
thousands and thousands of trivial patents, e.g. patent no. EP
394160 on the progress bar or patent no. DE10108564 on reception
of e-mail—and this against the current law (Art. 52 EPC), which
clearly prohibits software patents.

Even assuming the European courts would have enough expert
knowledge to see through a patent lawyer operating with expert
vocabulary, in most cases it is sufficient to threaten legal
action with a case value of millions of Euros in order to
force a small or medium company or even a single developer to give
up.

In USA current legal cases impressively show where the development
leads. Our only chance is to give no ground to those cases, this
means retaining the current legal situation.

Q:
Is there any hope for stopping software patents in Europe? I've
heard they've already been decided upon?

A:
Some proponents of software patents like to spread these rumors,
but actually it is not true. On September 24, 2003, the
European Parliament has clearly decided against software
patents. On March 7, 2005, the European Council of ministers
has—against its own rules of procedure and at risk of a
conflict with the parliament—passed a counter-proposal
supporting software patents. In the next step, the
parliament will decide in 2nd reading about the new proposal.
Nothing has been decided yet!

But it is true that not much time is left for voicing your own
interests in the decision process. Act now!

Q:
Isn't the battle already won? Both the German Government and the
European Commission are voting for retaining the status quo and
not allowing an extension of patentability.

A:
“Status quo” here means the current practice of
jurisprudence and includes legalizing the over 30,000 European
software patents, the vast majority of which are trivial and broad
(see below). This “status quo” does not need to be
extended: it is sufficient to legalize it to get the same
situation here which exists in the USA today.

It would be completely different, if “status quo” would
mean the current law—Art. 52 EPC—which strictly forbids
software patents. But this is not meant.

Trivial patents

Q:
Wouldn't it be better to solve the problem of trivial patents by
demanding a minimum level of invention instead of not accepting
software patents in general?

A:
All recent experiences clearly show that this will not work.

The software patents already granted in Europe strongly show that
the patent offices are not able to prevent trivial patents. So the
often stated better quality of European patent examinations is
pure fiction.

Q:
Aren't trivial patents an exception?

A:
No, they're the rule. If you have experience in software
programming, it should be easy for you to convince yourself:

The FFII has collected and documented several 10,000 of about
30,000 European software patents, available via
http://swpat.ffii.org/patente/txt/.
Randomly pick any of these patents, read and understand the
claims and judge yourself:

How large do you think is the effort for getting from the
problem to the patented solution idea, in comparison with the
effort for reading the patent application document?

How high do you think is the probability that a programmer
could accidentially violate a patent not known to him?

If a customer would ask you to solve exactly this problem,
how probable would you think it was, that your independently
developed solution would violate this patent?

Notice: The original aim of the patent system is the
documentation of knowledge in patent applications. At this point
it should be said that this kind of “documentation of
knowledge” in patents is completely useless for the
programmer.

Software patents and Free Software

Q:
Wouldn't it be better to vote for an exception for free software
instead of trying to prevent software patents altogether?

A:
Such an exception would be the same as prohibition of software
patents in general, since free software may be commercial software
as well. The proponents of software patents clearly know this and
try to exploit this misunderstanding such that there will be at
most an exception for non-commercial software. With this, nothing
would be won, since a patent only claims commercial use of an
idea. The possibility of commercial use is an important point of
free software.

Q:
Some free-software-projects are developed non-commercially. Could
they be attacked by software patents at all?

A:
Yes. The patent owner can claim that the existence of this free
software hurts him commercially.

Especially in the case of a non-commercial development, the mere
threat of a lawsuit is often sufficient to force the developers
to abandon the project. This is because there are no monetary
means to finance the lawsuit.

Q:
Can software which is distributed as source code be attacked by
patents at all? (“source code privilege”)

A:
By the earlier directive draft of the EU commussion of February
20, 2002, software could be attacked only from the moment when it
is executed on a computer—thus, not the author, but the
customer is vulnerable. This doesn't help me as the author,
however, since my customer will hold me liable for patent claims
by third parties.

The current directive draft of the European Council of March
7, 2005 contains a new article, by which publication of source
code can already be a direct infringement.

Q:
If software patents are so dangerous for free software, why does
free software also exist and grow in countries which have
software patents?

As long as software patents in Europe offically do not exist, many
patent holders abstain from charges, because a wave of legal cases
would heat up the debate about European software patents.

Proposals for a Solution

Q:
Wouldn't it be a useful compromise to grant software
patents for five years only?

A:
A shorter patent duration would of course shorten the duration of
damage.

But this is not allowed by international law: the TRIPS agreement
demands a minimum duration of patents of at least 20 years.

Q:
Isn't is possible to work around software patents and use
alternative methods? For example Ogg/Vorbis instead of MP3?

A:
In some cases it is really possible. The Ogg/Vorbis developers
have done patent research and hope their format won't vulnerate
patents in the USA. On the other side, there are many areas where
patents are so central and broad that working around them is
impossible (e.g. panorama images).

But you can never be sure: patent research is not reliable. Even
JPEG was believed for many years not to be covered by any patents.
Now courts have to decide whether this is indeed true.

At least it is always a competitive drawback if you have to work
around a file format which has been established as a de facto
standard. Especially in the software sector, interoperability is
very important.

Q:
What should happen instead?

A:
Since software patents have been proven to have a negative impact
on the economy they should not be granted at all.

A revision of the patent laws should make this clear. In practice
a more narrow definition of the word “technical” is
necessary.

On September 24, 2003, the European Parliament has decided on a clear
restriction on patentibility, effectively preventing patents on pure
software. But the Parliament in itself cannot pass a directive, but
it needs approval by the Council of Ministers. Instead of giving this
approval, on March 7, 2005, the Council has passed a counter-proposal,
completely ignoring the draft by the Parliament. This counter-proposal
would cause about 30000 existing patents on software to become
legal at one fell swoop.

It's the Parliament's turn now to decide on the new proposal in 2nd
reading. Right now it is important to support the Parliament in defending
its decision from September 24, 2003.

Q:
How can we reach this goal?

A:
Unfortunately only few know why the Parliament's decision from September
24, 2003 is reasonable and what fatal effects on the software economy an
expansion of patentability as proposed by the Council would cause.
Probably the newly elected members of the Parliament aren't sufficiently
familiar with the topic, too. We can strengthen the support of the
parliament in the population by informing the public.

As those affected we must stand up for our interests now, if we
don't want to leave the field to the patent departments of a few large
companies demanding software patents "in the name of the software
industry".

Act now! Help to inform those affected! Point out the importance of this
matter to your representatives in the European Parliament! Ask them to
listen to the reasons of the FFII and to take thim into account in their
decision!